Public Policy and Administration in the Age of Donald Trump

The constitutional powers of the President of the United States are defined by America’s Constitution. Specifically, Article II of the US Constitution lists explicit powers of the US president with Congress able to delegate to him additional powers under Article I. While the structure of the US Constitution was supposed to confine the powers of the presidency, it is less clear that this is the case today.

In creating the powers of the US president, the constitutional framers of 1787 had dual visions in mind regarding the power of the chief executive. The first image was that of the king from America’s colonial experiences when it was part of the British empire. That was an image of a too powerful king who abused his power. Part of the reason the American colonies sought independence from England is stated in the July 4, 1776 independence, which lists numerous instances of monarchial abuses of power (Becker 1961).

The second image of presidential power comes from America’s first Constitution, the Articles of Confederation. Here, the presidency was a short-term rotating office picked by the one-house Congress. This presidency was considered, along with the entire Articles government, to be too weak and ineffective. Thus, when in 1787 delegates were assembled in Philadelphia, Pennsylvania and were originally tasked with revising the Articles, one of the main concerns was not only creating a national government that neither had too much or too little power, but also creating an office of the presidency that similarly achieved this purpose. The fear? Too strong of a presidency would abuse rights. Too weak of a presidency would mean national weakness.

The product of what the constitutional framers produced is described in The Federalist Papers. Written by Alexander Hamilton, James Madison, and John Jay, three supporters of the new Constitution, these 85 essays were addressed to the residents of New York state to encourage them and the state legislature to ratify the new Constitution. Many consider these papers strong evidence of the intent of the framers and a clarification of how the US Constitution was supposed to operate.

Alexander Hamilton’s Federalist number 70 argues for four ingredients in the new office of the presidency: unity, duration, adequate provision for its support, and competent powers (Hamilton 1937: 455). These four traits would strengthen the president beyond what it was under the Articles of Confederation; yet such powers would still be consistent with republican or popular government. Several reasons were offered across The Federalist Papers to show why presidential power need not be feared. One, the president as well as the entire Constitution would be read as a power-conferring document. By that, unless otherwise specified in the Constitution, there would be no implied powers for the federal government or president to act (see Federalist no. 17 and 84). Two, the presidency will be inferior to Congress in its powers (Federalist no. 48; Hamilton 323). Finally, drawing upon Baron de Montesquieu, the new Constitution would contain the principles of separation of powers and checks and balances as a mechanism to contain the power of all branches of government, including that of the president. As stated in Federalist no. 47:

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,’’ or, “if the power of judging be not separated from the legislative and executive powers,’’ he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.

Presidential power in the USA was supposed to be circumscribed significantly by a constitutional structure that limits chief executives to powers prescribed in the Constitution.

US presidential power is defined in Article II of the Constitution. This article prescribes three major presidential powers along with a host of secondary powers. Article II, section I vests executive power in the president. This clause, along with Article I, section I and Article III, section I, which vest legislative and judicial powers in Congress the Supreme Court, respectively, are known as the vesting clauses. These three clauses embody the concept of separation of powers. Article II, section 2 provides for the president to be commander-in-chief of the armed forces; Article II, section 3 declares that the president shall “take care that the laws be faithfully executed” (“Take care” clause). These three clauses are the broad general grants of presidential power, making the president the chief executive, civilian head of the military, and the chief law enforcement official. Article II also assigns specific powers to the president, including vetoing legislation, making treaties, issuing pardons, and appointment of ambassadors, judges, and other officers of the USA. Collectively, one can refer to all these as Article II powers of the president.

But in addition to Article II powers that the Constitution assigns to the president, Congress can grant to him additional powers under Article I. In Schechter Poultry v. United States, 295 U.S. 495 (1935), the issue of delegation of power was tested. The Court ruled that so long as Congress delegated authority to president to act in ways that constrained wide open discretion, there would be no violation of Article I, section 1. In sum, as what has come to be known as the intelligibility principle, delegation is permitted so long as with certain bounds. Exactly what those bounds are practically is not clear because ever since Schechter, no delegation has been struck down as unconstitutional.

The ability of Congress to delegate additional power to the president has implications on the checks and balances and separation of powers issues. Article I contains a host of powers for the legislative branch that serve as checks on the presidential authority, but also delegation suggests a complex relationship between presidential and congressional power.

Youngstown Sheet and Tube v. Sawyer (343 U.S. 579, 1952), also known as the “Steel Seizure” case, may be one of the most influential cases on foreign policy and, in general, presidential power in the Court’s history – at least it has become so. While the Court struck down President Truman’s effort to nationalize the steel industry to avert a strike and the interruption of steel production during the Korean War, the case is not read as detrimental to presidential power and authority. The various opinions describe the legal scenarios that might support significant presidential power in foreign policy matters, or at least the issues that take place beyond US borders. It is important to read the opinion as providing an outline for what types of foreign policy authority the president does have.

Most importantly, Justice Jackson’s opinion is often the most cited part of the Youngstown decision. It describes a tripartite division of presidential power in foreign affairs depending on whether the chief executive is acting alone or with or against congressional approval. What Youngstown constitutionally establishes is the proposition, along with Schechter, that Congress may add to Article II presidential power by delegating to it Article I powers. In many ways, the delegation of additional powers to the president is at the heart of the administrative or New Deal state, whereby the executive branch is given additional regulatory or other powers. But conversely, Youngstown also indicates that presidents are vested with certain inherent powers that Congress may not encroach upon, and that the legislative branch may impose some limits on executive branch actions.

Overall, when it comes to presidential power, the Constitution indicates that presidents obtain their authority either from Article II of the Constitution or may be delegated some additional authority from Congress via Article I. There are no extratextual constitutional powers for the president. Finally, presidents are subject to constitutional limits on their authority, with these limits captured by the phrases checks and balances and separation of powers. Unlike the private bureaucracies which may be characterized by their unitary top–down power structures, the US federal bureaucracy is not so constituted (Schultz and Maranto 1998).

The Constitution defines the formal powers of the president. Scholars such as Barber (1972), Neustadt (1964), Goodwin (2018), Edwards (2016), and Burns (2010) have located the strength and efficacy of US presidents in part to their personalities or other institutional arrangements such as the size of the congressional majorities or public support. Others such as Skowronek (2008) see presidential power defined by time and circumstances of history, while some others see leadership style as a defining element of real presidential authority.

The point these presidential scholars is making that that for the most part, all presidents, including Donald Trump, have roughly had the same constitutional power, yet some have been more effective in governing and moving their agenda than others. Historians compile lists that rank and rate the best and worst presidents, judging them in part along dimensions that capture their ability to secure their policy agenda. Richard Neustadt famously captured this notion in arguing that the real power of the presidency is the power to persuade. Presidents, because of the constitutional constraints on their authority, cannot simply order or command others to act, much like a monarch, dictator, or military general might. Often, they must bargain or cajole others to act. Factors identified as critical to the power to persuade might be their personal style or personality, historical opportunities, strength and size of congressional majorities, public opinion, and media skills. Some presidents might see their role as more transactional versus transformational too (Burns 2010).

Thus, real presidential authority is constitutional authority plus the power to persuade and historical context. In the context of public administration, approximately the same equation exists. By that, to evaluate presidential public administration effectiveness, one needs to look at how well they have mastered the constitutional context of the office and combined that with persuasiveness and historical context.

As noted in Section “Introduction,” the Trump presidency did have stated goals that demanded an effective administrative capacity. These goals included building a border wall, reforming energy policy, immigration reform, and bringing back manufacturing jobs. These and other goals demanded administrative capacity in terms of moving legislation or mastering the art of administrative law in order to change rules or issue executive orders. Had he run a competent executive department, he might have been more successful than he was in securing these objectives.

Donald Trump assumed office with several factors augmenting and constraining his presidential public administration authority. On the plus side, first, Trump had congressional majorities in both the House and the Senate, giving him significant capacity to move his policy agenda and secure appointment of key staff in his administration. Second, Trump also benefitted from recent federal legislation that allowed for him to begin presidential transition planning earlier than allowed for by previous presidents. Third, Trump had command of the social media and was able to use his years of television personality experience to help him with securing public support. Fourth, his political base was solidly behind him and has remained so into his fourth year in office. Finally, as someone who had a famous bestselling book The Art of the Deal, one would have presumed he would have been able to use the power of persuasion effectively.

Conversely, the president did not win the popular vote and had secured a narrow electoral college victory. He took office with high disapproval ratings that persisted throughout his presidency, and Trump himself had no government experience to draw upon. Also, according to at least one psychologist, he did not bear the personality characteristics typical of US presidents (Schier and Eberly 27). In short, Trump’s political capital was less than his supporters hoped or his opponents feared (Schier and Eberly 57). Finally, according to Rucker and Leonnig (2020), Trump’s personal administrative style was a major source of his problems.

This recklessness, a belief he knew better than experts, and his simple denial of personal responsibility for policies or actions, all would characterize the administrative style of the Trump presidency and serve also as a major factor limiting its efficacy.

Turbulence might be the first word or characteristic to describe Trump’s public administration record. Even though the 2010 Presidential Transition Act gave him ample opportunity to prepare to take office, his transition set the tone for his entire presidency. Originally, his son-in-law Jared Kushner was to head the transition, and then it shifted to former New Jersey governor Chris Christie, and then he was ousted. This constant changing of transition chiefs foreshadowed similar problems Trump has had as president. For example, his original chief of staff Reince Preibus lasted 6 months, to be replaced by General John Kelly who lasted 18 months, to be replaced in early January 2019 by Mike Mulvaney as acting chief of staff, only to be replaced by Mark Meadows. The Trump administration also had an unprecedented number of appointees replaced, fired, or resigned, causing problems in continuity of leadership. Many positions went unfilled or simply were staffed with acting personnel (Schier and Eberly 70; Kassop 2019; Goodsell 2019). In 2020, Trump also sought to abolish civil service protections for tens of thousands of federal workers, underscoring the conflicts his administration has had with careerists (Rein and Yoder 2020).

Moreover, while it is not unusual for presidential appointees and the careerists to have conflicts, the degree to which there had been friction between the two is also atypical. Right from the start, the Trump administration caused friction with the bureaucracy by delaying pay raises, freezing hirings, and transferring member of the Senior Executive Service, such that many resigned (Goodsell 2019).

But equally as important to the personnel issues, there was a general ambivalence to the federal government. Steve Bannon, one of Trump’s original political and policy advisors, noted the skepticism or conflict between them, bemoaning how the “deep administrative state” was seeking to undermine the president. Such a skepticism was fueled in part by pieces such as the famous New York Times Anonymous (2018, 2019) author talking about leading the resistance against the Trump presidency.

Several accounts by Woodward (2020), Anonymous (2018, 2019), and Wolff (2018), among others, simply describe the turbulence and incoherence within the Trump administration. The president refused to read policy or intelligence briefings (Goodsell 875), preferring to go with his gut or changing his mind at whim. He deeply distrusted many of the careerists, especially those who were holdovers from the Obama administration. Trump refused to learn from his time in office, failing to correct previous governing mistakes, perhaps still thinking that he is the CEO of the government and that neither the constraints of the Constitution nor the lessons of persuasion that Neustadt described hold. While all presidential administrations have learning curves, the Trump presidency seems to have eschewed it, with some declaring over time that he preferred governing or directing on his own while ignoring all advice from the staff or other agencies (Woodward 2020).

The turbulence issue is thus closely related to either a competency, leadership, or ideological issue. By that, Trump’s lack of government experience and his unwillingness to learn, while perhaps popular with his base, hamstrung his ability to govern. There was no clear sense of an overall Trump administrative agenda, or at least a coherent one, unless one sees it in efforts simply to repeal all things that Obama brought, including his Affordable Care Act. Some have remarked that the Trump presidency was actually “anti-administration” (Goodsell 2019), undermining agency mission, rejecting science (when it comes to global warming or other environmental issues), or otherwise letting the president’s personal interests or ideology stand in the way of effective administration.

Incompetence defined his administration and compromised Trump’s ability to secure the goals he outlined in his party acceptance and inaugural speeches. But there was a counter movement within Trump’s public administration. Steve Bannon, as noted above, wanted to smash the administrative state. He was simply anti-government and long after Bannon left, the Trump administration this animus or attitude persisted. This mashing of government came into conflict with using the state and administrative apparatus to move a conservative public administration and policy agenda (Michaels 2017). Even Ronald Reagan, criticized for the conflict he had with the federal bureaucracy, eventually understood the need of co-opting or using it to govern. Trump never recognized that. His effectiveness as a president and his presidency overall could have been far stronger had it opted to use the administrative state to govern and move an agenda, as opposed to weakening or fighting it. Thus, while others have emphasized that the Trump administration was simply noted for its anti-government management style which sought to disable the executive branch (Goodsell 2019; Kassop 2020; Schier and Eberly 2017), it is more accurate to argue that the incompetence in the ability to use the administrative powers to accomplish policy goals came into conflict with the desire to disable the state. The conflict perhaps forever doomed the ability of the Trump administration to succeed along the dimensions it aspired to achieve.

Presidents, as noted above, have two sources of constitutional or legal authority, that which is granted to them by Article II of the Constitution and that which is delegated to them by Congress though the latter’s Article I authority. When presidents act under Article II authority, they have far more power than when acting under Article I delegated power. In the latter case, Congress may attach more strings or limits to what the president or the executive branch does. They may do that through their appropriations authority or from other clauses in the Constitution.

When Congress delegates authority or to the executive branch, in theory, there are outer limits to how far it may go. In Schechter Poultry, the Court argued that legislative authority cannot be delegated in a wholesale fashion and that some limits on executive branch discretion must be imposed. This is especially the case when Congress delegates to the president, the executive branch, or one of the administrative agencies rulemaking authority. The problem of congressional delegation of rulemaking authority is a product of interest group politics, the increasing complexity of technical rules and expertise, and simply, divisions of labor. The issue of delegation was not anticipated by the US constitutional framers, who, in 1787, did not anticipate the rise of the administrative or regulatory state. But by the time of US New Deal under President Franklin Roosevelt in 1933, accommodating the regulatory state with the original constitutional concepts of checks and balances and separation of power became a major problem. Numerous Supreme Court cases sought to sort this out, as did the eventual adoption in 1946 of the Administrative Procedures Act (APA).

The APA outlines the rules under which when Congress has delegated rulemaking or adjudication authority, the executive branch, the administrative agencies, or the president must follow. There must be limits on discretion when agencies such as the Environmental Protection Agency (EPA) issue rules regarding clean air, water, or emissions, for example. These rules require specific steps to be followed, including notice, and allowing for public participation and comment (“notice and comment”). Rule must also provide for statements of need and evidence to support them as well as response to objections to them. Similarly, adjudication has a set of rules, but they also implicate constitutional due process issues if the decisions do not follow specific procedures.

Together, if federal agencies, the executive branch, or the president via executive orders act under Article I delegated powers, there are constraints on their behavior. Rules or executive orders issued under this delegated power under the APA carry the force of law. This also means efforts to change these rules must follow a similar process. Rules once promulgated cannot simply be changed for political reasons; there must be substantial evidence to support their changes and the changes must a process.

The reason why this brief discussion of the APA and administrative law is important is because so much of what presidents do, and what public administration is about, takes places with rulemaking and increasingly, executive orders by presidents of the USA. Administrative rulemaking, including presidential executive orders, often goes hand in hand with the normal legislative process to make law.

A defining characteristic of American politics over the last 30 years has been the increased political polarization and partisanship (Binder 2003). This polarization has made it more difficult to enact laws, especially if there is split party control of the two houses of Congress or with the president. This polarization has helped undermine presidential effectiveness and public administration. Consider the first year of the presidencies of Bill Clinton (1993), George Bush (2001), Barack Obama (2009), and Donald Trump (2017). For each of them, there was single party control of the presidency and both houses of Congress in their first year (in the first half year for Bush in 2001). Theoretically, this means the president should have had the easiest time to pass legislation not only because of the partisan makeup, but also that is often when presidents enjoy their greatest popularity and their political capital is at their highest. Clinton in his first year saw 209 bills signed into law; for Bush, it was 102, Obama 118, and Trump 94 (GovTrackUS 2017; Jacobson 2018). Of the last 10 presidents, Trump comes in last in terms of the number of bills signed into law.

Certainly, though, the paucity of bill should perhaps not be a single measure of presidential public administration effectiveness, especially in an era of partisan polarization. Often, presidents have resorted to the use of executive orders to act when they are unable to get their way with Congress.

As a candidate, Trump criticized President Obama for resorting to executive orders to govern, seeing them as a sign of weakness. However, consider Table 1 which looks at the number of executive orders issued under presidents Trump, Obama, Bush, and Clinton (Federal Register 2021).

Several things stand out. Trump issued more executive orders in his only term than did his predecessors in their first year. In fact, in his first year, Trump issued 55 executive orders, compared to 38, 54, and 57 issued by Obama, Bush, and Clinton, respectively. Trump used them heavily even in the first year when his party had control of both houses of Congress (Federal Register 2021). Trump seemed no more or less likely to resort to executive orders to act than did his recent predecessors and, if their use was a sign of Obama’s weakness or ineffectiveness, the former’s issuance of 72 more executive orders than the latter (comparing Trump’s presidency to Obama’s first 4 years) perhaps speaks to his weakness as a public administrator.

However, the number of executive orders may still not be a fair indication of public administration skills. What also might count is what these orders have done and whether they have survived legal scrutiny. While some of Trump’s major executive orders such as the Muslim travel ban were upheld by the Supreme Court in Trump v. Hawaii, the fates of many of his orders have not been so good. The Washington Post (Barbash and Paul 2019) pointed out that the Trump administration has lost 63 cases in court simply because of its failure to follow the basic rules of the APA and administrative law. It thought it could simply issue rules or executive orders that rescinded or changed previous rules or orders without following process and procedure.

Kassop (2019) classified four types of legal challenges to Trump policies – immigration, limits on rights (e.g., for transgenders), Obama-era rules (mainly environmental), and terrorist detention – finding that the president has sustained many losses. Additionally, his efforts to add citizenship status to the 2020 Census were negated (Hurley and Chung 2019) and the courts have tied up for a long time much of his effort to reallocate funds under the National Emergencies Act to build a border wall (Merchant and Freking 2020), and whether he will be able to sustain his efforts to undo rules regarding DACA (Barnes 2019) and auto fuel and emission standards for California are still up in the air (Shepardson 2019). Additionally, efforts to undo Obama-era designations if historic monuments under the Antiquities Act have been limited (McCombs 2019).

Overall, while the New York Times reported that as late as December 2019, Trump was preparing to roll back 95 environmental rules (Popovich 2019), various reports indicate that between 70% and 85% of previous efforts have been overturned in the courts (Earth Justice 2020; Sexton 2019). If effectiveness in public administration is measured in part by securing judicial endorsement and subsequent administrative enforcement of one’s agenda, then that is not occurring with the Trump administration. Bills were not being signed into law and executive orders were not passing legal muster.